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finding that neither the DOT nor VE testimony should automatically be accorded controlling weight
Summary of this case from Edmond v. BerryhillOpinion
Civil Action No. SA-04-CA-0514 FB (NN).
June 17, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
I. Introduction
Plaintiff Matias Siller seeks review and reversal of the administrative denial of his application for Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on January 30, 2004. Plaintiff contends that ALJ Wade Morrison's conclusion that plaintiff retained the residual functional capacity ("RFC") to perform work available in the local and national economies is not supported by the substantial evidence of the record. For this reason, plaintiff requests that the court reverse, remand and order the entry of a finding of disability.
Docket Entries 1, 5, 9. See also Administrative Transcript ("Transcript"), at 8-16.
After considering plaintiff's brief in support of his complaint, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration (hereinafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's request for relief be DENIED.
Docket Entry 5.
Docket Entry 6.
Docket Entry 9.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 1383.
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted his administrative remedies prior to filing this action in federal court. Plaintiff filed an application for SSI on October 26, 2001. The SSA denied plaintiff's application both initially, on December 11, 2001, and on reconsideration, April 24, 2002.
Transcript, at 11, 84-89.
Transcript, at 54-59.
Transcript, at 62-64.
On May 6, 2002, plaintiff requested a hearing before an ALJ. The hearing was held on June 28, 2003. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to examine and question plaintiff, the vocational expert, Jesus Duarte, and the medical expert, Dr. Homer Goehrs, during the hearing.
Transcript, at 65-66.
Transcript, at 18-51.
The plaintiff, who was forty six (46) at the June 2003 hearing, testified that he had an eighth grade education and work experience as a floor installer and boot camp instructor. Plaintiff told ALJ Morrison that he quit working approximately two years before the administrative hearing because his back problems worsened. However, plaintiff also stated that he returned to his work as a boot camp instructor approximately two weeks before the administrative hearing. The day before the administrative hearing, plaintiff was admitted to the emergency room because he felt his cardiac condition was exacerbated. Plaintiff further testified that in the year before the hearing he performed some volunteer work as a preacher.
Transcript, at 14.
Transcript, at 24.
Transcript, at 25.
Transcript, at 26.
Transcript, at 30.
Transcript, at 29. Plaintiff told that ALJ that he moved around a lot and had twelve to thirteen hour days in his work as a boot camp instructor. Transcript, at 27. Plaintiff also testified that he could perform volunteer work as a preacher because he was an ordained minister. Transcript, at 43.
Plaintiff told ALJ Morrison that he had received injections for his back impairment the year before the administrative hearing. Plaintiff testified that the injections alleviated his pain. Plaintiff also stated that he took blood thinners for his heart condition.
Transcript, at 28.
Transcript, at 30.
At the hearing, ALJ Morrison also heard testimony from medical expert Dr. Homer Goehrs. Dr. Goehrs testified that, in his opinion, none of plaintiff's impairments met or medically equaled a listing. However, he did state that it was a close decision as to whether or not plaintiff's heart condition met a listing. Finally, Dr. Goehrs testified that plaintiff's fecal incontinence was not necessarily related to his back impairment.
Transcript, at 33-41.
Transcript, at 34.
Transcript, at 41.
Transcript, at 41.
Vocational expert Jesus Duarte was the last witness to testify at the hearing. VE Duarte classified plaintiff's past work as a floor installer as medium, skilled. He testified that there was no exact entry in the Dictionary of Occupational Titles for plaintiff's work as a boot camp instructor. He stated that if the boot camp instructor position was akin to a camp counselor position, it would be medium, unskilled. If it was more similar to a recreational aide position, however, it was light, unskilled.
Transcript, at 42-50.
Transcript, at 45.
Transcript, at 45.
VE Duarte testified that plaintiff had no transferable skills from past work performed. He identified the following light, unskilled jobs that he believed plaintiff retained the RFC to perform: hand packer, mail clerk and assembler. He further opined that if plaintiff were limited to sedentary positions, he could perform work as a ticket taker, gate tender or cashier. After plaintiff testified that he had to lie down two or three times per day to alleviate his back pain, tired easily, suffered from shortness of breath, and had difficulty climbing stairs, Mr. Duarte stated that having to lie down two or three times per day for more than thirty minutes at a time would erode plaintiff's occupational base. Finally, VE Duarte told ALJ Morrison that plaintiff's ability to perform light work would be diminished by plaintiff's difficulty with bending, stooping, twisting, kneeling and crouching.
Transcript, at 45.
Transcript, at 46.
Transcript, at 47.
Transcript, at 48-49.
Transcript, at 49. Notably, plaintiff testified that he would require two to three breaks between five and thirty minutes in duration. Transcript, at 48.
Transcript, at 50.
On January 30, 2004, the ALJ issued his decision in which he concluded that plaintiff was not under a "disability," as defined by the Social Security Act ("the Act"), at any time through the date of the decision. Specifically, ALJ Morrison found that plaintiff retained the RFC to perform work available in the local and national economies.
Transcript, at 18-51.
Id.
After receiving the ALJ's unfavorable decision dated January 30, 2004, plaintiff requested review of the hearing and decision on February 5, 2004. On April 8, 2004, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action in this court on June 15, 2004.
Transcript, at 6.
Transcript, at 3-5.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards?V. Analysis
A. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3) (2002).
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez, 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. §§ 404.1520 and 416.920 (2002).
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Leggett, 67 F.3d at 564.
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In the instant case, the ALJ reached his decision at step five of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since the date of his application for SSI. ALJ Morrison then concluded at steps two and three that plaintiff had an impairment or combination of impairments (degenerative disc disease, cardiomyopathy and atrial fibrillation) which were severe, but did not meet or medically equal a listed impairment as of the date the plaintiff was last insured. At step four, the ALJ found that, although he was unable to return to his past relevant work, plaintiff retained the residual functional capacity for sedentary work.
Transcript, at 13; ¶ 1, at 15.
Transcript, at 13; ¶ 2, at 15.
Transcript, at 13; ¶ 3, at 15.
Transcript, at 14; ¶ 7, at 15.
Transcript, at 13; ¶ 6, at 15.
At step five, the ALJ held that given plaintiff's age (defined as a younger individual), education (a limited education), and vocational experience (no transferable skills from previous work), plaintiff could perform work as a ticket taker, a gate tender or a cashier and that a finding of not disabled was directed by Medical-Vocational Rule 201.19. Based on the foregoing, ALJ Morrison concluded that plaintiff was not under a disability. B. Is the ALJ's January 30, 2004 Decision Supported by Substantial Evidence?
Transcript, at 14; ¶ 8, at 15.
Transcript, at 14; ¶ 9, at 15.
Transcript, at 14; ¶ 10, at 16.
Transcript, at 15; ¶ 11, at 16.
Transcript, at 14.
Transcript, at 11, 14, 15; ¶¶ 11-12, at 16.
Plaintiff challenges the ALJ's decision, asserting that the ALJ's decision is not supported by the substantial evidence of the record. Plaintiff argues that this constitutes reversible error and that substantial evidence does not support the ALJ's decision. In my opinion, plaintiff's grounds for reversal are not meritorious. For that reason, I recommend that plaintiff's request for relief be DENIED.
Although plaintiff has separated his brief into separate "parts," he has not fully articulated or delineated, specific points of error. Consequently, I shall address the contentions made in each of the parts of plaintiff's brief.
1. Parts one and two of plaintiff's brief
In parts one and two, which contain a single combined analysis, plaintiff reviews the diagnoses given to him by his doctors: degenerative disc disease of the lumbar spine, cardiomyopathy, obesity, fecal incontinence and atrial fibrillation. Plaintiff then argues, in pertinent part:
Docket Entry 5, at 6, 7.
The diagnosis of the examining physicians record significant complaints of Plaintiff's constant pain in the lower back area. This, coupled with atrial fibrillation, obesity, fecal incontinence and degenerative disc disease combine to form a series of ailments that restrict the physical movement of the Plaintiff. He is essentially incapacitated by his inability to move and function effectively. Pain restrictions that force one to rely on the assistance of another simply to get out of bed, are serious, debilitating circumstances that should not be ignored. These symptoms and signs in combination with the medical reports clearly establish that the plaintiff suffers from ailments that support a finding of disability for the Plaintiff. The ALJ's ruling is in complete contradiction to the totality of this evidence.
Docket Entry 5, at 7.
The difficulty in parts one and two of plaintiff's brief is that it does not identify specific evidence overlooked by the ALJ, nor does it establish that the ALJ failed to comply with a particular, applicable legal standard. Certainly, there is evidence in the record that plaintiff was given the aforementioned diagnoses and had some resulting pain. However, the diagnosis of an impairment alone is not sufficient to establish a severe impairment or a disability. Rather, a plaintiff bears the burden of proving that his or her diagnosed impairment has more than a minimal effect on his or her ability to engage in work activities. In parts one and two of his brief, plaintiff has failed to establish that his impairments and/or his pain is disabling.
See Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983):
The mere presence of some impairment is not disabling per se. Plaintiff must show that she was so functionally impaired by her back trouble that she was precluded from engaging in any substantial gainful activity. Demandre v. Califano, 591 F.2d 1088 (5th Cir. 1979); Russell v. Secretary of Health, Education and Welfare, 402 F.Supp. 613 (E.D.Mo. 1975), aff'd 540 F.2d 353 (8th Cir. 1976); Manzanares v. Secretary of Health, Education and Welfare, [Jan. 1976 — Jan. 1977 Transfer Binder] Unempl.Ins.Rep. (CCH) ¶ 14,975 (D.N.M. 1976).
Id. See also Stone, 752 F.2d, at 1101; 20 C.F.R. § 404.1521(a).
Moreover, the ALJ's assessment of the evidence of record was more than sufficient. The ALJ supported his ultimate conclusions with plaintiff's own account of his activities in the year preceding the hearing (his volunteer preacher work), as well as the testimony of the medical expert and the medical evidence of record. Finally, the ALJ properly concluded that the food stamps forms filled out by plaintiff's treating physician, Dr. Simmons, were not entitled to controlling weight on the issue of disability.
See Transcript, at 12-14.
ALJ Morrison wrote:
The undersigned has carefully considered the statements of Dr. Simmons in fill-in-the-blanks food stamps forms dated May 2, 2002 and February 25, 2002 stating that the claimant was unable to work due to back problems . . . However, when considering the supportability of the opinion and its consistency with the record as a whole, the undersigned finds that it is not entitled to controlling weight. Dr. Simmons' treating notes and clinical findings support an opinion that the claimant cannot do his past work, but not that he is disabled from all types of work. Transcript, at 13.See also Transcript, at 121, 197; 20 C.F.R. § 404.1502.
Because plaintiff has failed to identify specific evidence that the ALJ improperly assessed or an applicable legal standard with which the ALJ failed to comply, his arguments in parts one and two of his brief are unavailing. I find that, with respect to parts one and two of the brief, plaintiff has not established prejudicial, i.e. reversible, error.
See Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000), "This Court will not reverse the decision of an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure . . . To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result (internal citations omitted).'"
2. Part three of plaintiff's brief
In part three of his brief, plaintiff asserts that the ALJ "failed to adequately consider the Plaintiff's subjective complaints about disabling pain . . ." Without citation to specific evidence in the record, plaintiff further argues:
Docket Entry 5, at 8-9.
In this case, the ALJ not only heard the Plaintiff's testimony but he also had the diagnoses of the examining physicians that support the Plaintiff's complaints of disabling pain. The subjective evidence shown both in the testimony and in the medical records should have been used as a ( sic) aid in determining the true nature and extent of the plaintiff's disability. As the record shows, the ALJ frequently ignored the subjective evidence even when coupled with supporting medical evidence.
Docket Entry 5, at 8.
In concluding part three of his brief, plaintiff urges, again without direct citation to evidence in the record, that the ALJ's findings are
in complete contradiction to the subjective and objective evidence presented. While the ALJ acknowledges that an impairment exists, he completely ignores evidence of the severity of plaintiff's condition. He suffers from severe pain in his back. The plaintiff has complained of pain in his back and legs. This is attributed to a motor vehicle accident that occurred in 1995. He suffers from degenerative disc disease and back pain. Finally, he was also diagnosed as having atrial fibrillation. The ALJ's finding is in contradiction to the subjective and objective evidence presented before him. It is established that subjective evidence alone can establish a disabling condition. Here the plaintiff presented subjective evidence with supporting medical evidence of his back injury, heart problem and obesity. The ALJ's failure to properly consider the uncontroverted nature of this claim is reversible error. It is now the function of the reviewing Court to review the record as a whole to determine if the Defendant's findings were supported by substantial evidence and to determine the reasonableness of the decision reached. The medical evidence and the reports in the record which address the issue of Plaintiff's mobility and pain support the conclusion that he suffers from a serious combination of disabling ailments.
Docket Entry 5, at 9.
Social Security Ruling 96-7p was written to clarify the procedure to be used in assessing the credibility of a Social Security claimant's statements about symptoms and pain. The Ruling provides:
Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims — Assessing the Credibility of an Individual's Statements, SSR 96-7p, at * 1.
In determining the credibility of the individual's statements, the adjudicator must consider the entire case record, including the objective medical evidence, the individual's own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record. . . .
It is not sufficient for the adjudicator to make a single, conclusory statement that `the individual's allegations have been considered' or that `the allegations are (or are not) credible.' It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.
Id. , at * 1-2.
In the instant case, the ALJ did not "completely ignore" the evidence of record as to plaintiff's allegations of pain. Rather, the ALJ did a fair and thorough job of assessing all record evidence that supported or contradicted plaintiff's allegations of pain. For example, he noted the objective medical evidence of record which established a medical basis for plaintiff's allegations of pain. ALJ Morrison then discussed plaintiff's testimony and allegations of pain, as well as plaintiff's daily activities in the time since he alleged disability. Finally, the ALJ articulated the precise reasons for his finding with reference to the applicable legal standards set forth in SSR 96-7p:
Transcript, at 12.
Transcript, at 13. ALJ Morrison wrote:
The claimant testified that he has trouble with his back . . . He does volunteer work preaching the gospel since his alleged disability onset date and had recently gone back to work as a boot camp instructor, which requires him to stand and walk 12-13 hours per day. He was briefly hospitalized due to chest pain on June 17, 2003, the day prior to the hearing, but testing did not show any major heart problems. Id.
A consideration of factors outlined in Social Security Ruling 96-7p, which requires the undersigned to consider the effects of pain and other symptoms upon an individual's ability to work, supports a finding the claimant is able to at least perform sedentary work. A review of the evidence does not support a disabling degree of pain and limitation. While the claimant testified that he suffered from significant pain, he did not testify to taking pain medication. His medication list did not include regular pain medication (Exhibit 6E); it lists two facet injections, which the claimant testified helped his condition. He has not sought emergency room care on a frequent basis and has not been hospitalized for back pain.
Transcript, at 13.
The ALJ's analysis is supported by the substantial evidence of the record and was made in accordance with the applicable legal standards. Plaintiff has not establish reversible error with respect to the ALJ's assessment of plaintiff's credibility and allegations of pain.
3. Part four of plaintiff's brief
In part four of plaintiff's brief, plaintiff argues both that the ALJ failed to consider the combined impact of all his impairments and that plaintiff's vocational and educational background, when combined with plaintiff's disabling impairments, preclude plaintiff from performing work activities. Plaintiff asserts, in pertinent part:
Docket Entry 5, at 10-11.
The combined subjective and supporting medical evidence presented before the ALJ was powerful and convincing testimony of the plaintiff's disabling circumstances. If each of the medical claims were presented alone, they would raise serious questions about the plaintiff's health and disability. They are all conditions that reduce a person's ability to function as a normal productive member of society. The combination of these severe ailments without a doubt establishes that the plaintiff, Matias Siller, is within the parameters of a disabled person as defined in the Social Security Act. This plaintiff is the ideal person, whom ( sic) this act was meant to benefit.
Id.
Yet, ALJ Morrison did consider the combined effect of all of plaintiff's impairments. He thoroughly assessed the evidence of record in his decision. He noted that the objective (medical) evidence of record established that plaintiff's cardiac impairment was not disabling, as well as that plaintiff's subjective allegations of back pain were undermined by plaintiff's ability to perform volunteer work and to abstain from taking pain medication. In addition, the ALJ utilized the opinion of plaintiff's treating physician, Dr. Simmons, in concluding that plaintiff was precluded from performing his past work but capable of performing sedentary work with restrictions. Plaintiff has failed to establish that the ALJ committed prejudicial, i.e. reversible error.
Transcript, at 12.
Transcript, at 13, 14.
Transcript, at 13.
4. Plaintiff's reply brief
In plaintiff's reply brief, plaintiff asserts two arguments that, although related to portions of his initial brief, are essentially new. Those arguments are: first, that Social Security Ruling 83-12 makes it clear that plaintiff cannot perform the jobs identified by both the VE and the ALJ because of plaintiff's need for a sit/stand option; and second, that plaintiff's fecal incontinence also eliminates the possibility that plaintiff could perform the jobs identified. Despite the unfairness of plaintiff's raising new arguments on reply without affording defendant the opportunity to respond I shall address plaintiff's two new arguments.
Docket Entry 9, at 8.
Plaintiff's first argument is unavailing. Although SSR 83-12 states that, ordinarily, a person cannot sit or stand at will when performing unskilled work, the Ruling is not dispositive on this issue. As a preliminary matter, it is important to note that the Ruling's language is qualified and not universal. The Ruling states that, "Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will."
Titles II and XVI: Capability to do other work — the Medical Vocational Rules as a framework for evaluating exertional limitations within a range of work or between ranges of work, SSR 83-12p (emphasis added).
Next, it is important to note that there are no clear rules as to whether the Dictionary of Occupational Titles, or a SSR defining general categories of work, supercede the testimony of the vocational expert. Social Security Ruling ("SSR") 00-4p was promulgated to clarify the SSA's standards for the use of vocational expert and specialist testimony, and the manner in which an adjudicator is required to identify and resolve any conflicts between such testimony and vocational data contained in the Dictionary of Occupational Titles and the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles. SSR 00-4p makes it clear, however, that neither the DOT nor the vocational expert testimony should automatically be accorded controlling weight. Rather, the Ruling provides
Policy Interpretation Ruling Titles II and XVI: Use of Vocational Expert and Vocational Specialist Evidence, and Other Reliable Occupational Information in Disability Decisions, SSR 00-4p (December 4, 2000).
Neither the DOT nor the VE or VS evidence automatically `trumps' when there is a conflict. The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information.
Id.
Because the vocational expert identified the jobs at issue — ticket taker, gate tender and cashier — as jobs which allow a sit/stand option, the ALJ was justified in finding the same. Consequently, I find plaintiff's argument without merit.
Plaintiff's second argument is similarly without support. The mere fact that plaintiff has fecal incontinence is an insufficient basis upon which to determine that plaintiff is precluded from performing work activities. Plaintiff has not cited evidence in the record — either subjective or objective — as to the effect of plaintiff's fecal incontinence on his daily and routine activities. For example, plaintiff has not referred the court to any evidence that plaintiff must take excessive trips to the restroom — either in number or duration. Moreover, plaintiff stopped his work as a boot camp instructor the day before the hearing as a result of chest pain. Thus, the evidence supports the finding that plaintiff was able to work despite the fecal incontinence.
For all the foregoing reasons, it is my conclusion that plaintiff has failed to establish prejudicial, i.e. reversible error. Therefore, I recommend that plaintiff's request for relief be DENIED.